Pubdate: Sat, 19 Apr 2008
Source: Washington Post (DC)
Page: B01
Copyright: 2008 The Washington Post Company
Author: Tom Jackman, Washington Post Staff Writer


Justices Conclude Police Acted on Vague Suspicions

The Virginia Supreme Court reined in police searches yesterday, 
overturning convictions in two 2005 drug cases in which the court 
said police had conducted searches based on vague suspicions.

In one case, a Henrico County officer followed a woman who appeared 
intoxicated to her car, saw what appeared to be marijuana joints 
inside and arrested her. The officer then found cocaine and heroin in 
the car. But the Supreme Court ruled that the officer had no grounds 
for the marijuana arrest.

The court also deemed illegal the search of a Danville man who was 
seen getting into a car after leaving a suspected drug house. An 
officer pulled the car over for defective equipment and learned that 
neither the woman who was driving nor the man had a license. The 
officer ordered both out of the car, frisked them and found a gun and 
cocaine on the man.

L. Steven Emmert, a Virginia Beach lawyer who writes about the 
state's courts online, said he wasn't surprised by the rulings. 
"While Virginia is still one of the law-and-order states," Emmert 
said, "the Supreme Court is very respective of Bill of Rights types of cases."

Corinne Magee, a McLean defense lawyer, said the rulings weren't 
unusual because the Supreme Court has been regularly reversing the 
state Court of Appeals. "What we're seeing is the conservatism that 
has developed in the Court of Appeals," Magee said, "and the Supremes 
reacting to that."

The first reversal involved Frances G. Buhrman, who was "having some 
difficulty maintaining her balance while walking" at a convenience 
store, according to Henrico Officer C.M. Nelson. She appeared to 
"fall asleep while operating a frozen drink machine," the officer said.

Nelson testified that she was concerned that Buhrman might be drunk 
and then drive. She followed Buhrman to her car and asked for 
identification, and Buhrman promptly complied. In doing so, she 
revealed "hand-rolled cigarettes in the interior door handle." The 
officer said that she smelled a "faint odor," that the cigarettes had 
a "coloration" and that she suspected marijuana.

A trial court rejected Buhrman's attorney's attempt to suppress the 
arrest, as did the appeals court, and she was sentenced to six months in jail.

Supreme Court Justice Lawrence L. Koontz Jr. wrote that "evidence of 
intoxication and vaguely 'suspicious' actions, without more, does not 
suffice to indicate that hand-rolled cigarette materials are being 
used for the illegitimate purpose of smoking marijuana, as opposed to 
the legitimate purpose of smoking tobacco." He also said the officer 
failed to specify what kind of "faint odor" she smelled, making that 
"insufficient to create probable cause to arrest an individual for 
possession of marijuana in this case."

In the second case, Danville Officer R.V. Worsham watched a car pull 
up outside a house where an informant had bought cocaine months 
earlier. The occupants went inside and were back within a minute. 
Worsham pulled the car over, found that neither occupant had a 
driver's license and frisked them both, finding drugs and a gun on 
Tyrone Junior McCain.

Worsham also testified that he conducts pat-down searches of everyone 
in that "high crime" neighborhood, "for my safety."

Justice S. Bernard Goodwyn wrote, "A person's Fourth Amendment rights 
are not lessened simply because he or she happens to live or travel 
in a 'high crime' area." He noted that Supreme Court precedent 
requires specific suspicion of an individual before a search can be conducted.

"That is a fantastic decision," Christopher B. Amolsch, an Alexandria 
defense lawyer, said of the Danville case. "If the Supreme Court 
didn't reverse that," particularly after the officer said he frisked 
everyone, Amolsch said, "they'd be giving police a license to shake 
down everybody in a high-crime neighborhood." 
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